Commonwealth v. Carlos Torres.

• Court: Massachusetts Appeals Court
• Decided: September 23, 2025
• Docket: 24-P-0152
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-152

COMMONWEALTH

vs.

CARLOS TORRES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted after a jury trial of two

counts of indecent assault and battery on a child under the age

of fourteen. On appeal he argues that the trial judge should

have instructed the jury, sua sponte, that they needed to find

separate and distinct acts underlying each charge and that the

absence of such an instruction created a substantial risk of a

miscarriage of justice. We affirm.

Background. The victim was seventeen years old at the time

of trial. When she was in elementary school, the victim

attended a daycare run by the defendant's wife in the home she

shared with the defendant. The victim testified about two

incidents that occurred in the home. The first incident occurred while the victim and the

defendant were alone on a couch in a living room in the home.

The defendant was playing video games, with the victim sitting

between his legs, when he "stopped playing and then . . . just

put his . . . hand in [the victim's] pants." The defendant's

hand was under the victim's underwear on her vagina. After

about thirty seconds, the defendant removed his hand.

The second incident occurred in a different living room in

the home. The victim was lying on a couch with her eyes closed

when the defendant reached under her shirt and started

scratching her back. The defendant then "play[ed] with [the

victim's] nipple for a little bit."

The judge did not give a separate and distinct acts

instruction, nor did defense counsel request one. Instead,

defense counsel requested "[j]ust the standard jury

instructions." Defense counsel also did not object to the

verdict slips, which named the victim and identified the counts

as "Indecent Assault and Battery on . . . a Child Under 14 . . .

VAGINA" and "Indecent Assault and Battery on . . . a Child Under

14 . . . BREAST." A third verdict slip named a different victim

and identified the count as "Indecent Assault and Battery on

. . . a Child Under 14 . . . LIPS."

2 Discussion. The defendant argues that the judge committed

reversible error by failing to give the "multiple charges" model

jury instruction1 or by otherwise failing to instruct the jury

that they needed to find separate and distinct acts underlying

each charge. Because the defendant did not preserve these

objections, we review to determine whether any error created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Mamay, 407 Mass. 412, 418-419 (1990).

A trial judge is not required to give "a particular

instruction so long as the charge, as a whole, adequately covers

the issue." Commonwealth v. McGee, 467 Mass. 141, 154 (2014),

quoting Commonwealth v. Daye, 411 Mass. 719, 739 (1992). Here,

the judge adequately and accurately conveyed to the jury that

there were distinct charges and that their verdict had to be

unanimous on each charge. After instructing the jury that the

Commonwealth had the burden to prove the defendant's guilt

beyond a reasonable doubt, the judge stated, "Your verdict on

each charge, whether it is guilty or not guilty, must be

unanimous." The judge further stated, "Ladies and gentlemen, as

1 That instruction provides as follows: "The complaint contains a total of __ charges. Each charge in the complaint is an accusation of a different crime. You must consider each charge separately and return a separate verdict of guilty or not guilty for each charge." Instruction 2.300 of the Criminal Model Jury Instructions for Use in the District Court (2009).

3 you know, you have before you three separate counts of indecent

assault and battery. You'll have with you three verdict[]

slips." Immediately following this statement, the judge

instructed the jury that "[t]o prove the defendant guilty of

each offense, the Commonwealth must prove things beyond a

reasonable doubt" and then proceeded to explain the elements of

the offense. Particularly where the verdict slips expressly

identified which victim and incident corresponded to which

charge, these instructions adequately conveyed to the jury that

they had to consider the charges separately and return a

unanimous verdict on each one. The defendant was not entitled

to an instruction containing the particular wording that he

presses for the first time on appeal. See McGee, supra at 155.

In addition, the defendant has failed to demonstrate a

substantial risk of a miscarriage of justice. Not only did the

verdict slips identify the corresponding incidents, the victim

testified about two separate incidents, and the prosecutor

further demarcated them by using the descriptors, "first

incident" and "second incident." The prosecutor's closing

argument also described two separate assaults against the

victim. Furthermore, defense counsel himself emphasized that

there were separate incidents when he asked the victim during

cross-examination, "Now, you're alleging that there were two

4 separate incidents that occurred with [the defendant], correct?"

Finally, that the jury acquitted the defendant of the third

charge against a different victim shows that they considered

each charge separately. In these circumstances we discern no

substantial risk of a miscarriage of justice. See Mamay, 407

Mass. at 419.2

Judgments affirmed.

By the Court (Shin, Grant & Hershfang, JJ.3),

Clerk

Entered: September 23, 2025.

2 For the first time at oral argument, the defendant claimed that a scrivener's error in the verdict slips, identifying each of the two counts involving the victim as "Count 1," created a substantial risk of a miscarriage of justice. We are unpersuaded. The jury returned separate verdicts on each count, showing that they considered the counts separately, as the judge instructed them to do. Moreover, the defendant's assertions regarding the purported inadequacy of the complaint, which was not in evidence, are irrelevant to whether the jury instructions created a substantial risk of a miscarriage of justice.

3 The panelists are listed in order of seniority.